E.J. King v. PBPP ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Edward James King, :
Petitioner :
:
v. : No. 875 C.D. 2019
: Submitted: January 31, 2020
Pennsylvania Board of :
Probation and Parole, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: November 10, 2020
Petitioner Edward James King (King) petitions for review of a final
determination of the Pennsylvania Board of Probation and Parole1 (Board), dated
May 14, 2019. The Board denied King’s request for administrative relief, thereby
rejecting his claim that the Board erred by failing to grant him credit for all time
served at liberty on parole. For the reasons set forth below, we affirm.
On January 8, 2002, King was convicted of three counts of robbery.
(Certified Record (C.R.) at 7.) The Court of Common Pleas of Allegheny County
1
Subsequent to the filing of the petition for review, the Pennsylvania Board of Probation
and Parole was renamed the Pennsylvania Parole Board. See Sections 15, 16, and 16.1 of the Act
of December 18, 2019, P.L. 776 (effective February 18, 2020); see also Sections 6101 and 6111(a)
of the Prisons and Parole Code (Code), as amended, 61 Pa. C.S. §§ 6101, 6111(a).
(common pleas) sentenced King to a term of incarceration of 5 to 20 years, resulting
in a minimum sentence date of March 23, 2005, and a maximum sentence date of
June 23, 2020. (Id.) On March 28, 2005, King was officially released from
confinement on parole. (Id. at 13.) On a number of occasions, beginning in
February 2006 and continuing until 2015, the Board recommitted King for various
technical parole violations, including failures to report to parole supervisors as
directed, failure to notify parole supervisors of his relocation to a new address, and
admitted use of alcohol while on parole. (Id.) After each recommitment, the Board
subsequently re-paroled King. (Id.) Relevant to the matter now before the Court,
the Board automatically re-paroled King on March 22, 2015, although it appears that
he was officially released from confinement on March 28, 2015. (Id. at 1, 14.)
At that point, King’s parole violation maximum date was June 23, 2020. (Id. at 2.)
On March 30, 2016, King was arrested on charges of trespass and simple
assault in DeKalb County, Georgia, and was subsequently convicted and sentenced
to 6 months’ imprisonment. (Id.) By action recorded March 8, 2017, the Board
acknowledged the conviction and took no further action. (Id. at 26.)
On September 15, 2017, after King had returned to Pennsylvania, officers of
the Mount Oliver Borough Police Department stopped King for traffic violations and
discovered heroin in King’s possession. (Id. at 46-47.) They arrested King and
charged him with misdemeanor possession of a controlled substance. (Id.) On
October 26, 2017, the Pennsylvania Office of Attorney General (OAG) charged
King with multiple felonies, including conspiracy and delivery of a controlled
substance. (Id. at 54-55.)
On December 25, 2017, the Board issued a warrant to commit and detain
King. (Id. at 34.) That same day, the Pittsburgh Police Department arrested King
2
on the Board’s warrant. (Id. at 65.) On January 12, 2018, the Board issued a notice
of charges noting the pending charges against King from his September 15, 2017
arrest and the subsequent charges from the OAG. (Id. at 36.) On January 17, 2018,
OAG arrested King and charged him with various drug-related charges,
including criminal conspiracy, possession with the intent to deliver, prohibited acts,
and criminal use of a communication facility. (Id. at 77.) On that same day,
common pleas set King’s monetary bail at $2,500. (Id. at 80.) King posted bail on
March 6, 2018, and was released into Board custody that same day. (Id. at 70, 213.)
By action recorded on April 6, 2018, the Board detained King pending disposition
of his new criminal charges. (Id. at 71.)
On August 15, 2018, King pleaded guilty to 1 count of conspiracy
and 5 counts of manufacture, delivery, or possession of a controlled substance with
intent to manufacture or deliver (First Conviction), and common pleas sentenced
King to a term of imprisonment of 18 to 36 months. (Id. at 74-75, 78.) On the same
date, King pleaded guilty to 1 count of possession of a controlled substance resulting
from his September 15, 2017 arrest (Second Conviction), and common pleas
sentenced him to a term of imprisonment of 3 to 6 months, to be served concurrently
with the sentence for his First Conviction. (Id. at 72.)
On August 24, 2018, the Board issued a notice of charges and scheduled a
parole revocation hearing in relation to King’s First Conviction, based on his status
as a convicted parole violator (CPV). (Id. at 99.) On August 31, 2018, the Board
issued a similar notice with respect to King’s Second Conviction. (Id. at 111.)
King subsequently signed a Waiver of Revocation Hearing and Counsel/Admission
Form with respect to each of his two convictions. (Id. at 98, 125.) By signing these
forms, King waived his right to a revocation hearing, the right to a panel hearing,
3
and the right to have counsel present at that hearing with respect to each conviction.
(Id.) He also admitted that he pleaded guilty to the new criminal charges supporting
his two convictions. (Id.) By decision recorded September 21, 2018 (mailed
October 9, 2018), the Board recommitted King as a CPV to serve the remainder of
the unexpired term for his First Conviction. (Id. at 167.) The Board recalculated
King’s parole violation maximum sentence date to be January 7, 2028, and also
noted that his maximum sentence date was “subject to change.” (Id.) In its
September 21, 2018 decision, the Board did not state whether it would grant or deny
King credit for time spent at liberty on parole. (Id.) By decision recorded
October 22, 2018 (mailed November 6, 2018), the Board noted King’s
Second Conviction and declined to take further action with respect to that
conviction. (Id. at 189.) The Board also stated that, in its September 21, 2018
decision relative to King’s First Conviction, the Board denied King credit for time
spent at liberty on parole because King “absconded while on supervision” and
showed a “prior history of supervision failures.” (Id.)
Beginning on November 19, 2018, King filed a series of petitions seeking
administrative relief from the Board’s September 21, 2018 and October 22, 2018
decisions. (Id. at 191-212.) King set forth a variety of arguments, including that the
Board erred in denying him credit to which he was entitled and in revoking credit it
had previously granted him. On May 14, 2019, the Board mailed King a response,
essentially granting his petitions for administrative relief in part and denying them
in part. In its response, the Board reasoned:
The [B]oard paroled you from a state correctional
institution (SCI) on March 22, 2015[,] with a max date of
June 23, 2020. This left you with a total of 1,920 days
remaining on your sentence at the time of parole. The
Board’s decision to recommit you as a [CPV] authorized
the recalculation of your sentence to reflect that you
4
receive no credit for the time you were at liberty on parole.
61 Pa. C.S. § 6138(a)(2). In this case, the [B]oard did not
award you credit for time at liberty on parole. This means
you still had a total of 1,920 days remaining on your
sentence based on your recommitment.
The [B]oard lodged its detainer against you on
December 25, 2017. You were arrested for new criminal
charges in the Court of Common Pleas of Allegheny
County at docket number 1443-2018 on January 17, 2018,
and posted bail on March 6, 2018. You were sentenced on
August 15, 2018[,] to a term of state confinement.
Based on these facts, the [B]oard awarded backtime
credit from December 25, 2017[,] to January 17, 2018[,]
and from March 6, 2018[,] to August 15, 2015[2]
(185 days). Subtracting these 185 days means you now
have a total of 1,735 days remaining on your original
sentence (not 3,420 days as initially calculated).
....
Accordingly, all of your calculations have been
corrected, and you will be receiving a new [B]oard action
....
(Id. at 213-14 (emphasis omitted).) By action dated that same day—May 14, 2019—
the Board modified its decision of October 22, 2018, by correcting King’s indictment
number, modifying the length of his unexpired term to 4 years, 8 months,
and 30 days, and recalculating King’s parole violation maximum sentence date as
May 16, 2023. (Id. at 216.) The Board also noted that “the rest of the Board[’s
October 22, 2018] action remains the same.” (Id.)
2
The Board’s response purports to calculate credit by using the date August 15, 2015, but
it appears that this is a typographical error as to the year. As noted in the preceding paragraph,
King was sentenced to a term of state confinement on August 15, 2018—not 2015. Calculating
credit from December 25, 2017, to January 17, 2018, and from March 6, 2018, to August 15, 2018
(i.e., the correct date), results in a credit of 185 days, as calculated by the Board.
5
On appeal to this Court,3 King argues that the Board abused its discretion in
failing to grant him backtime credit for time spent at liberty on parole. Specifically,
King contends that the reasons the Board articulated for its denial of credit—that
King “absconded while on supervision” and had a “prior history of supervision
failures”—are not specific enough to support the Board’s action because those
reasons do not identify the particular dates on which the relevant supervision failures
occurred. (King’s Br. at 15.)
When determining whether there has been an abuse of discretion, the
Pennsylvania Supreme Court has held that “an abuse of discretion is not merely an
error of judgment, but occurs only where the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the result of partiality, prejudice,
bias or ill will.” Zappala v. Brandolini Prop. Mgmt., Inc., 909 A.2d 1272, 1284
(Pa. 2006); see also Moss v. SCI-Mahanoy Superintendent Pa. Bd. of Prob. &
Parole, 194 A.3d 1130, 1133 n.5 (Pa. Cmwlth. 2018), appeal denied, 215 A.3d 562
(Pa. 2019).
Section 6138(a)(2.1) of the Prisons and Parole Code (Code), 61 Pa. C.S.
§ 6138(a)(2.1), sets forth guidelines for the Board’s discretionary power in granting
and denying credit for parole and provides:
The Board may, in its discretion, award credit to a parolee
recommitted under paragraph (2)[4] for the time spent at
liberty on parole, unless any of the following apply:
3
This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. 2 Pa. C.S. § 704.
4
Section 6138(a)(2) of the Code, 61 Pa. C.S. § 6138(a)(2), provides, in part:
If the parolee’s recommitment is so ordered, the parolee shall be
reentered to serve the remainder of the term which the parolee would
(Footnote continued on next page…)
6
(i) The crime committed during the period of
parole . . . is a crime of violence . . . or a crime
requiring registration [as a sexual offender].
(ii) The parolee was recommitted under
[S]ection 6143 [of the Code, 61 Pa. C.S. § 6143,]
(relating to early parole of inmates subject to Federal
removal order).
(Emphasis added.)
The Pennsylvania Supreme Court has held that, pursuant to
Section 6138(a)(2.1) of the Code, “the Board must provide a contemporaneous
statement explaining its reason for denying a CPV credit for time spent at liberty on
parole.” Pittman v. Pa. Bd. of Prob. & Parole, 159 A.3d 466, 475 (Pa. 2017). The
Supreme Court specified, however, that a “single[-]sentence explanation” given by
the Board explaining its decision “is likely sufficient in most instances” to meet the
Pittman standard.5 Id. at 475 n.12. More precisely, we have recognized that the
have been compelled to serve had the parole not been granted and,
except as provided under paragraph (2.1), shall be given no credit
for the time at liberty on parole.
(Emphasis added.)
5
In practice, this Court has often found such single-sentence explanations sufficient to
meet the Pittman standard. See, e.g., Tres v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth.,
No. 828 C.D. 2018, filed June 3, 2019), slip op. at 7 (holding Board’s stated reason “arrested for a
firearms charge” satisfied Pittman standard); Bleach v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth.,
No. 794 C.D. 2017, filed May 31, 2019), slip op. at 8 (holding Board’s stated reason “[r]evoke
street time due to second conviction (drugs) while on parole” satisfied Pittman standard);
Lawrence v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 1132 C.D. 2018, filed Apr. 12, 2019),
slip op. at 9 (holding Board’s stated reason “new conviction same/similar to the original offense”
satisfied Pittman standard); Smoak v. Talaber, 193 A.3d 1160, 1165 (Pa. Cmwlth. 2018)
(holding Board’s stated reason of “unresolved drug and alcohol issues” satisfied Pittman standard).
Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code
§ 69.414(a), an unreported panel decision issued by this Court after January 15, 2008, may be cited
“for its persuasive value, but not as binding precedent.”
7
Board’s statement that a CPV has a “prior history of supervision failures” is
sufficient to meet the Pittman standard as long as that statement is supported in the
record. Plummer v. Pa. Bd. of Prob. & Parole, 216 A.3d 1207, 1211 (Pa. Cmwlth.
2019), appeal denied, 222 A.3d 1130 (Pa. 2020); Baxter v. Pa. Bd. of Prob. & Parole
(Pa. Cmwlth., No. 1059 C.D. 2017, filed Apr. 16, 2018), slip op. at 7.
Here, to satisfy the Pittman standard for explaining its decision to deny King
credit for time at liberty on parole, the Board stated that King “absconded while on
supervision” and noted his “prior history of supervision failures.” (C.R. at 189.)
As in Plummer, the record in this matter—which shows that King repeatedly failed
to report to parole supervisors as required and admitted that he violated the terms of
his parole—supports the Board’s explanations. (Id. at 13, 65.) Contrary to King’s
assertion, the Board need not specifically identify the particular dates on which the
supervision failures occurred in order to satisfy the Pittman standard. See Vann v.
Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 1067 C.D. 2017, filed Apr. 10, 2018),
slip op. at 18 (rejecting argument that Board’s simple assertion of “prior history of
supervision failures” was insufficient to give notice of “what specific acts are being
alluded to by the Board,” because those acts were “documented in the record”).
The Board, therefore, provided King with a sufficient contemporaneous statement
supporting its decision to deny him credit for time at liberty on parole, and, therefore,
did not abuse its discretion.
Accordingly, we affirm the final determination of the Board.
P. KEVIN BROBSON, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Edward James King, :
Petitioner :
:
v. : No. 875 C.D. 2019
:
Pennsylvania Board of :
Probation and Parole, :
Respondent :
ORDER
AND NOW, this 10th day of November, 2020, the final determination of the
Pennsylvania Board of Probation and Parole, dated May 14, 2019, is AFFIRMED.
P. KEVIN BROBSON, Judge